Citation Nr: 0126326
Decision Date: 11/14/01 Archive Date: 11/20/01
DOCKET NO. 94-03 791 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Buffalo, New York
THE ISSUE
Entitlement to educational assistance benefits under Chapter
35, Title 38, United States Code, beyond the delimiting date
of April 29, 1991.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
C. Schlosser, Counsel
INTRODUCTION
The Board notes that the claims folder has been reconstructed
and is missing a substantial portion of the veteran's
records, including verification of his military service.
However, the December 1993 Statement of the Case reports that
the veteran served honorably from August 15, 1952, to
November 10, 1952, in the U.S. Air Force; from January 18,
1954, to January 17, 1957, in the U.S. Marine Corps; and from
April 14, 1958, to March 29, 1961, and from January 17, 1963,
to October 17, 1963, in the U.S. Army. The veteran received
a permanent and total disability rating on January 29, 1969.
The appellant is the veteran's wife.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a June 1992 letter which denied the
appellant's claim for benefits because the delimiting date
had passed, and a February 1993 letter in which the RO denied
the appellant's request for an extension of the delimiting
date for entitlement to education benefits under Chapter 35.
The appellant appealed and was afforded a hearing at the RO
in July 1994. Her claim was denied by the hearing officer as
reflected in a January 1995 supplemental statement of the
case (SSOC).
FINDINGS OF FACT
1. The appellant filed an application for Chapter 35
benefits for counseling only in February 1981
2. In April 1981, the appellant was notified of her
eligibility for Chapter 35 benefits and advised that her
eligibility extended through April 29, 1991.
3. The appellant filed a second application for Chapter 35
benefits for counseling only in December 1989.
4. In May 1992, the appellant filed an application for
Chapter 35 education benefits.
5. In August 1992, more than one year from the date that the
claimant's original eligibility ended, the appellant filed a
request for an extension of the eligibility period for
entitlement to education benefits under Chapter 35.
6. There is no evidence that the claimant's circumstances,
including a period of incarceration and reported physical and
mental impairments, as defined for purposes of regulations
governing education benefits, prevented her use of education
benefits prior to April 29, 1991.
CONCLUSION OF LAW
The criteria for entitlement to an extension of the
delimiting date for use of education benefits under Chapter
35, Title 38, United States Code, are not met. 38 U.S.C.A.
§ 3512; (West 1991 & Supp. 2001); 38 C.F.R. §§ 21.3046,
21.3047 (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Under the rule regarding the payment of educational
assistance benefits under Chapter 35, Title 38, United States
Code, for spouses and surviving spouses, the beginning date
of eligibility is the effective date of the veteran's total
and permanent rating or the date of notification, whichever
is more advantageous to the spouse. 38 U.S.C.A. § 3512;
38 C.F.R. § 21.3046 (a). The period of eligibility can not
exceed 10 years. 38 C.F.R. § 21.3046 (c)(1).
The 10-year delimiting period may be extended if the claimant
submits an application for extension within the applicable
time period, and "was prevented from initiating or
completing the chosen program of education within the
otherwise applicable eligibility period because of a physical
or mental disability that did not result from...willful
misconduct." 38 C.F.R. § 21.3047(a). It must be
established by medical evidence that such program of
education was medically infeasible. 38 C.F.R. § 21.3047.
38 C.F.R. § 21.1032(c) indicates that claims for extended
periods of eligibility must be received by the later of one
year from the date on which the original period of
eligibility ended or one year from the date on which the
disability ceased to prevent the beginning or resumption of
training.
In the present case, the appellant married the veteran in
January 1980. The veteran was assigned a permanent and total
disability rating, effective January 29, 1969. In February
1981, the claimant applied for Chapter 35 benefits for
counseling only. She subsequently had counseling sessions
regarding her Chapter 35 benefits in May 1981 and July 1981.
She was informed that the delimiting date for her to receive
Chapter 35 education benefits was April 29, 1991, ten years
after the date of the letter notifying her of such
entitlement.
In May 1992, the appellant submitted an application for
Chapter 35 education benefits. By letter of June 5, 1992,
the appellant was advised that her request for benefits had
been denied as the application was submitted beyond the
delimiting date of April 29, 1991. Thereafter, by
correspondence of August 12, 1992, the appellant requested an
extension of the eligibility period for Chapter 35 education
benefits. Specifically, she maintained that she had been
unable to meet the deadline for using her eligibility due to
psychiatric and mental disability and a period of
incarceration. In connection with her request, the appellant
submitted medical records showing that she had been medically
disabled from November 28, 1985, to March 9, 1991, due to a
work-related injury. In February 1993, the RO denied the
appellant's request for an extension as the request was not
filed within one year of the date that the appellant's
disability ended or one year of the ending date of
entitlement. The present appeal ensued.
At her July 1994 hearing at the RO, the appellant testified
that she wanted an extension of time to file the request for
an extension of eligibility for Chapter 35 education benefits
beyond the delimiting date of April 29, 1991. She reasoned
that, because she had been incarcerated from September 1991
to March 1992, a period of six months, she should be given an
additional six months, until October 1992, to file her
request for an extension. On that basis, the appellant's
request for an extension which was received in August 1992
would have been timely.
The appellant has indicated that her incarceration prevented
her from going to school. The appellant was imprisoned for
making a fraudulent workers compensation claim.
Willful misconduct, for purposes of veterans' benefits, means
an act involving conscious wrongdoing or known prohibited
action. 38 C.F.R. §§ 3.1(n), 3.301. In this case, the
appellant's inability to attend school because of
incarceration for
criminal activities appears to be within the definition of
willful misconduct. The Board notes that medical
infeasibility is the only basis on which a delimiting date
may be extended. The Board does not find that proof of
incarceration may be considered proof of medical
infeasibility for purposes of extension of the delimiting
date in this case.
The appellant also maintains that there were period of time
in which she was unable to pursue her education due to
physical and mental impairments. However, as noted above,
the appellant must show that she had a complete inability to
fill out and complete the application for education benefits
prior to the delimiting date of April 29, 1991. The Board
does not find that such evidence has been presented.
The Board notes that there has been a significant change in
the law during the pendency of this appeal with the enactment
of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L.
No. 106-475, 114 Stat. 2096 (2000). This law eliminates the
concept of a well-grounded claim and redefines the
obligations of VA with respect to the duty to assist.
However, in the circumstances of this case, a remand would
serve no useful purpose. The evidence submitted by the
appellant pertains to medical treatment and clinical findings
after April 29, 1991. For that reason, such evidence could
not possibly establish that the appellant was factually
incapable of filling out and mailing an application for a
course of education under the provisions of Chapter 35 for
any significant period of time between April 29, 1981, and
April 29, 1991. Obtaining additional factual evidence
regarding the appellant's alleged impairments would not
change the outcome of the claim. Even with consideration of
the evidence submitted by the appellant which includes
treatment for a left knee disorder, thoracic outlet syndrome
involving the right shoulder, and depressive neurosis, she
has not demonstrated that she was so incapable of movement or
thought as to be completely incapable of writing a letter,
making a phone call, or filling in an application for Chapter
35 education benefits. In sum, the evidence of
record does not show that the appellant had disabilities
prior to April 29, 1991, which made her physically incapable
of filling in an application for a chosen course of education
by writing or printing, nor does it show that she was
mentally incapable of the thought needed to fill out such an
application. The evidence also does not show that she was
physically unable to use her hands or mentally incapable of
the thought needed to contact the VA by letter or phone to
ask for an extension of the delimiting date during the year
between April 29, 1991 and April 29, 1992. Against this
background, the appellant's request for extension of the
delimiting period beyond April 29, 1991, must be denied.
ORDER
Entitlement to an extension of time beyond the April 29,
1991, delimiting date for education benefits under Chapter
35, Title 38, United States Code, is denied.
LAWRENCE M. SULLIVAN
Member, Board of Veterans' Appeals